The Government are constantly reminding us of the immense value of the Law Commission, which they themselves established in 1965, and of the high quality of its work. Our Amendment No. 114, except in one minor respect, mirrors precisely the Law Commission's draft Bill. In April 1997, my right honourable friend the Leader of the Opposition, when he was Home Secretary, invited the Law Commission to examine the law of bad character with a view to formulating a comprehensive statutory scheme. After four and a half years' work which, as I said on Report, involved historical analysis, international comparisons and extensive consultation, it produced its proposal.

The Law Commission devoted special attention to the two issues in respect of which we find ourselves at odds with the Governmentthe issues of the inclusionary presumption and the issue of propensity. The conclusion that the Law Commission reached was based on extensive research and characterised by mature reflection, as anyone reading its report would conclude. If the Government wish to depart from that report and the draft Bill, therefore, they need, in my submission, to demonstrate why the Law Commission report is either flawed or in other respects inferior to their own draft.

In another place yesterday afternoon the honourable Member, Mr Heath, spoke as follows:

"If we share"

by "we" the honourable Member meant the Government

"the same objective, the Law Commission has provided us with an objective way of achieving it. In that case, why on earth are Ministers holding out for their own interpretation of the best way forward? They can adduce no particular evidence of superiority for that approach, which poses clear dangers as identified by the Law Commission in its evidence".[Official Report, Commons, 18/11/03; col. 715.]

I listened very carefully to what the noble Baroness said in her speech. I notice that on the inclusionary presumption there has, in effect, been no movement by the Government. So I turn now to the second issue which is of concern to us, which is the issue of propensity. Here the Government have made one concession; that is, to delete Clause 93(1)(d) from the original Bill. Your Lordships will recall that Clause 93(1)(d) reads as follows:

"In criminal proceedings evidence of the defendant's bad character is admissible if, but only if . . .

(d) it is evidence of the defendant's conviction for an offence of the same description, or of the same category, as the one with which he is charged".
I have to confess that I find it quite extraordinary that the Government ever contemplated including that clause. Clause 93(1)(d) allows evidence of previous convictions to be put in merely because they exist. There is no requirement for relevance whatever.

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In another place yesterday the honourable Member, Vera Baird, asked rhetorically,

"What, therefore, is the purpose of paragraph (d)"?

She answers herself by saying:

"It can only be to include [such convictions] even though they are irrelevant and do not prove anything".[Official Report, Commons, 18/11/03; col. 717.]

On the equally unacceptable relationship between Clause 93(1)(e) and Clause 96(1)(a), despite painstaking discussions with the noble Baroness, who has been the very acme of courtesy and who has made every effort to assist, we have made, I fear, no progress at all.

Clause 93(1)(e) states:

"In criminal proceedings evidence of the defendant's bad character is admissible if, but only if . . .

(e) it is relevant to an important matter in issue between the defendant and the prosecution".
Clause 96 is headed by the expression,
"Matter in issue between the defendant and the prosecution".

Clause 96(1)(a) states:

"For the purposes of section 93(1)(e) the matters in issue between the defendant and the prosecution include

(a) the question whether the defendant has a propensity to commit offences of the kind with which he is charged, except where his having such a propensity makes it no more likely that he is guilty of the offence".

First, whatever objectives these provisions seek to achieve, they clearly do not achieve them. If propensity is an issue in the case, following Clause 96(1)(a), all Clause 93(1)(e) is saying is that propensity evidence is relevant to propensity evidence. That is obviously true but it gets us no closer to knowing whether propensity evidence is relevant or not.

What should your Lordships make of the qualifying word "important" in Clause 93(1)(e)? If the only evidence against the accused is propensity evidence it will certainly be important, but it would be an outrage if an accused could be convicted on propensity evidence alone.

Finally, what about the expression,

"except where his having such a propensity makes it no more likely that he is guilty of the offence"?

The law so far is that propensity evidence is always irrelevant precisely because it makes it no more likely than not that the accused is guilty of the offence. The only circumstances in which past conduct may be led by the prosecution is where it is evidence directly relevant to the issues in the case; that is to say, similar fact evidence.

Is this an attempt by the Government to preserve the similar fact rule in Clause 96(1)(a), or not? We have sought assurances to these questions both across the Dispatch Box and in private. But despite the noble Baroness's best efforts, to which I again pay tribute, our endeavours have been to no avail. That is why we have tabled Amendment No. 114B.

Moved, as an amendment to the Motion that the House do not insist on its Amendment No. 114, to which the Commons have disagreed for their reason numbered 114A, leave out "not".(Lord Kingsland.)

Lord Thomas of Gresford: My Lords, I too pay tribute to the very hard work that the noble Baroness

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has done in connection with this part of the Bill. The removal of paragraph (d) is a step very much in the right direction, which we welcome. However, the criticisms that the noble Lord, Lord Kingsland, has just made about the relationship between Clause 93(1)(e) and Clause 96 are absolutely valid in our opinion.

I have looked at Clause 96(1)(a) and (b) for some time and considered what they meant. The words,

"except where his having such a propensity makes it no more likely that he is guilty of the offence",

have troubled me in the middle of the night wondering what on earth they are supposed to mean. I have come to the conclusion that whoever drafted the Bill originally had in mind, through Clause 96(1)(a), putting into statutory form the accepted and well known doctrine of similar fact evidence.

With that in mind, I have attempted today to redraft this sectionI have given notice to the Minister of the way in which I did soin order to make absolutely clear the purpose of that clause. My redraft reads as follows:

"(1) For the purposes of Section 93(1)(e) the matters in issue between the defendant and the prosecution include:

(a) the question whether the defendant has a propensity to commit offences of the kind with which he is charged, where such a propensity is capable of persuading a reasonable jury of the defendant's guilt on some ground other than his bad character".
That encompasses the concept of similar fact evidence because similar fact evidence is not introduced simply to introduce evidence of bad character that will tend to make the defendant look worse in the eyes of the jury; it is there in order to deal with specific issues. I have tried to set those out. I continue by suggesting,
"his propensity may be so capable, where it may assist a jury in determining: whether a crime has been committed; . . . the identity of the offender; . . . whether the acts of the defendant were designed or accidental; . . . whether the defendant was acting under a mistake of fact; . . . the truth or falsity of the defendant's allegations that witnesses are mistaken or lying".

If the noble Baroness will examine the words with those advising her, she will see that it is absolutely clear that Clause 96(1)(a) refers to similar-fact evidence that assists a jury in determining those issues. I hope that we can have some response to that, or that we can have some discussions about it at a later stage.

Paragraph (b) as drafted is about,

"the question whether the defendant has a propensity to be untruthful, except where it is not suggested that the defendant's case is untruthful in any respect".

What does that mean? In virtually every trial, the issue is whether the defendant is telling the truth or not. On the face of it, the paragraph suggests that it would be possible for the prosecution to introduce evidence of propensity simply by challenging the defendant when he gives his evidence by saying, "You're lying, aren't you?". "No, I am not," he might reply. The prosecution might then say, "Is that what you say? Then let's look at the list of convictions against you".

It is not permitted in any circumstances in our current trials for the prosecution to raise an issue in cross-examination of a defendant whereby he may cast

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aspersions against another witness or the police and then say, "Aha! You have now thrown away your shield and we are going to introduce evidence of propensity". I cannot believe that those who drafted the Bill and the Minister intend to make it possible for the prosecution to introduce convictions as part of its case simply because it says that the defendant's case is untruthful.

With that in mind, I have tried to redraft paragraph (b) as follows. The matter in issue is,

"the question whether the defendant has a propensity to tell lies where such a propensity is capable of persuading a reasonable jury of the defendant's guilt on some ground other than that he has told lies in the course of the investigation and trial of the case before them".

Defendants have very often told lies in their interviews with the police, and they may very well lie when they give evidence. However, surely a defendant's propensity to tell lies could come into play only when the prosecution sought to establish something other than that he had simply told lies and that his case was untrue.

I am sure that I have said enough for noble Lords to appreciate that we are talking about an extremely difficult and technical part of the law, and that it would be far better to fall back on the Law Commission's Bill, which is incorporated by the original amendment and is the result of very considerable research and reflection by that body. Its provisions were in the Bill until the Commons removed them, and in our view they should prevail unless we can come to some very satisfactory understanding with the Government before the Bill is finally put to rest.

6 p.m.

Baroness Walmsley: My Lords, it may be appropriate at this point for me to speak to my Amendment No. 126B, which is in the group. Noble Lords will recall that, right from the beginning of the passage of the Bill through this House, a cross-party group of Peers interested in youth justice has sought to remove from the Bill the measure that takes away the complete ban on using bad character evidence of convictions committed by the defendant when he or she was a child. Indeed, when I tested the opinion of the House, noble Lords agreed with that.

Since then, however, the other place has agreed to an amendment that states that such evidence,

"is admissible only if the court is satisfied that the interests of justice so require".

We do not agree with that amendment. The interests of justice can never be served by using in court evidence of offences committed when the defendant was a child, of immature judgment and at an early stage of his or her development, given that at least seven years will have passed since those offences took place.

Our reasons for feeling that have been rehearsed at great length at early stages of the Bill, so I shall not weary your Lordships with those again at length. I shall simply list them very briefly to remind the House

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of them. First, there has been inadequate consultation on the effects of the matter. Secondly, there has been no call from expert groups or the public for the complete ban on such evidence about childhood offences. Thirdly, it cannot be relevant to bring such evidence forward in the light of the developmental changes that take place between a child's being 14 and 21, the latter age being when such evidence could be put before the court if the measures in the Bill were passed.

As I think I pointed out at an earlier stage, the introduction of such a measure is also inconsistent in the light of other actions and statements that the Government have made. Our law, which makes children criminals at 10, is out of step with most other civilised and developed countries, and we must not make it worse by allowing such a measure to get through the House. Most children who commit crimes are disadvantaged in some way, and should be given a second chance.

While we are considering the Green Paper recently brought forward by the Government, Every Child Matters, which makes many good suggestions, we should bear in mind the need for a youth justice system that is entirely separate from that of adults. All the youth justice and children's organisations are calling for that. Those are the reasons why I will in due course move Amendment No. 126B.